Labor Strikes: an Uneasy Choice

labor strikesA number of California workers have faced of late some tough decisions with regard to their employment and labor strikes. Should they support fellow employees who wish to strike, or should they cross the picket line to continue working at their jobs? If you need help understanding the ramifications of either choice, a local employment lawyer is a good source for answers.

Local Calls for Labor Strikes

Strikes by workers are nothing new in this country, and Californians today are seeing several examples of employees fighting for improved wages, better working conditions, and a stronger voice in the workplace through organized strikes, such as:

  • University of California workers staged a three-day strike in hopes of increasing wages and reducing wage inequities. Service workers, security personnel, gardeners, and custodians across a score of California campuses stood on picket lines in an attempt to gain public support and leverage in contract negotiations after AFSCME Local 3299 and university officials were unable to reach an agreement.
  • California Nurses who are part of the CAN/NNU union have been part of a strike involving Kaiser, Oakland Children’s, and Sutter Hospitals.
  • The six day Los Angeles teachers strike just ended yesterday and teachers are back on the job today. A new agreement was reached with the School District for among other items, a 6% raise and the promise of a gradual reduction of class size.

Questions About Labor Strikes

Going on strike is no small matter. Contemplating such an action as a group is a weighty thing, and the stakes are no less significant for every single individual who is confronted with such a decision. The questions surrounding a strike often include the following:

Do Labor Strikes really ever accomplish anything?

Yes and No. Sometimes, striking does not result in wage gains or other benefits in any measurable way, but sometimes it does. Always, it could be argued, it brings attention to the issues and impacts public opinion, which, in turn, could sway policy-makers and employers.

Are Labor Strikes Legal?

Yes. However, strikers may not engage in misconduct, including:

  • Blocking individuals from coming or going into a location;
  • Threatening those who do not wish to join the strike;
  • Attacking employers, managers, or spokespersons on the other side.

Can anyone go on strike anytime?

No. There are rules to striking. The purpose of the strike must be lawful (it can not be to compel an employer to do something that is contrary to state or federal law), and the timing of the strike must comply with legal regulations. Additional restraints are attached to certain groups. For example, striking at a health care facility requires a minimum of 10 days written notice.

Can you be fired and replaced for participating in labor strikes?  

The National Labor Relations Act gives employees the right to strike in order to attempt to secure improved working conditions, wages, and benefits. Strikers, generally speaking, are entitled to be reinstated to their jobs at the end of the strike.

Will striking put you on a targeted list by management?

Maybe.  However, this would put your employer in hot water. [Read more…]

Government Shutdown – Do’s and Don’ts for Furloughed Employees

partial government shutdownIf you are a federal employee who has been furloughed due to the partial federal government shutdown, you are likely frustrated by your situation. During the government shutdown, there are some definite do’s and don’ts of which you should be aware:

During Government Shutdown Do…

  • Understand that your paycheck is not guaranteed at the end of the shutdown. Congress must vote on whether or not employees will receive back pay for the period during which they were furloughed.
  • Feel free to make health insurance claims during the furlough. Your benefits through the Federal Employees Health Benefits program continue even if premium payments are late.  The employee portion of your premiums will be accumulated and tacked on to your checks once they start rolling in again.
  • Consider yourself continuously employed in terms of years of service for retirement. A break in service will not be a factor until or unless the shutdown lasts at least six months in one calendar year. (Let’s hope that is not a bridge you have to cross!)
  • Consider filing for unemployment benefits. Eligibility is based on your being unemployed due to no fault of your own. While furloughed, you are still considered an employee of the federal government, but since you are not collecting a check, you may qualify. Make sure you understand the requirements that go along with receiving this support.
  • Seek a second job—with caution. There are strict ethics rules that apply to federal employees and outside work, which are still in effect during the furlough. You could jeopardize your federal job if you violate those rules.
  • Feel free to contact your members of Congress to express your views on the federal government shutdown. Freedom of speech is still alive and it is your right to express your concerns as a furloughed government employee, without fear of retribution.

During Government Shutdown Don’t…

  • Don’t volunteer to go into the office even though you are not getting paid. You are not permitted to perform any job-related tasks during a federal shutdown. Period.
  • Don’t make the mistake of thinking you can take your annual leave or paid time off during the furlough. The Antideficiency Act prohibits using paid leave at this time, even if that leave was previously scheduled.  
  • Do not anticipate growth in your federal retirement plan. Payments cease during a furlough, meaning neither employee contributions or agency matches will be made. On a positive note, if congress does issue back-pay when the furlough ends, these payments can be made retroactively.
  • Don’t use your government-issue cell phone or laptop except to check in on the status of the furlough.

[Read more…]

New Laws Boost  Women in California Workplaces

women in californiaWomen in California in the workplace have been given greater protections and opportunities in 2019 by the California legislature. 2019 brings with it a number of new laws that will impact California businesses and their employees. In particular, female workers have been given greater protections and opportunities by the California legislature. As a worker, if you find that your boss is not willing to comply with the new regulations, getting an experienced and effective labor lawyer on your side can make a significant difference.

Women Take the Lead

The Governor signed SB 826, requiring all companies that are publicly traded in California to include women on their boards. The bill specifies that such companies must have at least one female on their boards by the close of 2019, and those with five members are required to have two women by the time 2021 wraps up. Half of directors on six-person boards must be female by that deadline.

Harassment Legislation – Women in California

Governor Brown signed SB 1343 into law, requiring that any business with five or more employees provide training related to sexual harassment – what it is, how to prevent it, and how to report it. Such training must occur before the end of 2019, and is required every couple of years from then on. This will impact a number of small businesses, since mandatory training was previously required only for businesses employing at least 50 workers. The California Department of Fair Employment and Housing (DFEH) has been directed to created necessary training materials which can be loaned out for training sessions. Employers may choose a number of ways to deliver the training:

  • In small groups;
  • By department;
  • Company-wide;
  • In another format that makes sense.

Additionally, AB1870 extends the time limit victims have to file a charge with DFEH to three years, a substantial increase over the previous limit of one year.  This applies to any harassment related to prohibited conduct against protected classes based on gender, race, culture, age, sexual orientation, or religion.

Confidentiality Restrictions

SB 820 shuts down provisions for confidentiality that have previously been included in settlements in sexual harassment or sexual discrimination cases.  Although discrimination and harassment are not restricted to one gender, women experience the lion’s share of such behavior, and will be the biggest benefactors of the new law. However, it is not retroactive, so only those cases that reach a settlement starting in January of 2019 are required to comply with the new law.

Women in California – Accommodating New Mothers

Another piece of legislation that will impact many women in California on the job is AB 1976.  This law, which aligns with federal regulations, requires businesses to provide an appropriate area that is not a bathroom in which lactating women can be accommodated.   [Read more…]

Should You Sign a Separation Agreement?

separation agreementLet us say that, as you prepare to exit a job, your employer approaches you and asks that you sign a separation agreement before your final departure. Perhaps they have some concerns about the knowledge you have accumulated over time. Maybe you are leaving under unpleasant circumstances, and they fear that you will spread rumors about them, or even file a lawsuit against them. Should you sign the document they have presented to you? A local employment attorney can help you make the right decision for your unique circumstances.

Terms of a Separation Agreement

California law does not require a separation agreement, so when your employer proffers one, chances are it has something of value for both parties that is not required by law. Generally speaking, employers are looking for company secrets to be locked down and may wish to protect themselves from future lawsuits. What might they offer in exchange? The terms of the agreement might include the following:

  • A severance package, which may include wages and/or benefits in a lump sum, for a defined period of time, or in some combination of these;
  • A written plan regarding how and when payouts will occur;
  • Education benefits;
  • Tax and insurance benefits;
  • A non-compete clause that limits your opportunities in the field for a specified period of time;
  • A non-disparagement clause, barring you from saying negative things about the company or your reasons for leaving;
  • A statement agreeing that there was no coercion involved;
  • Clauses related to what will happen to company property that is in your possession, potential for rehire, or other matters of concern.

Unlawful Separation Agreement Requests

While it may be reasonable for an employer to attempt to protect itself from future legal action, California law states that employers can not request that you waive your claim to legal action regarding certain areas, including:

You Have Leverage Over Signing a Separation Agreement

When considering whether or not you want to sign a separation agreement, you need to remember that you do have some leverage here. Clearly, the company is hoping to gain something. Knowing this, do not be afraid to negotiate to get the things that you want. If they are offering a one-month severance package, try pushing it to six weeks. If you really need health insurance, or you would like to keep the company car you have been driving for the past five years, ask; you may get more than you ever imagined. Presumably they are asking you to give up legal rights. What is it worth to them? [Read more…]

Wage Theft a Rampant Problem in California

wage theftStarbucks is the latest big-name business that has been vilified for widespread wage policies that rob employees of earned wages. The court case has been brewing for six years and has undergone numerous twists and turns. Initially, the case, which was filed by former employer Douglas Troester, was deemed by the courts to be too trivial to even consider. Ultimately, though, California’s Supreme Court overturned that ruling, and found in favor of Troester. If you find yourself suffering from unethical wage theft practices at your place of employment, consider seeking the assistance of a local employment attorney to resolve the problem.

What Constitutes Wage Theft?

Wage theft can rear its ugly head in many forms. At Starbucks, the issue involved superiors asking workers to complete additional tasks after clocking out. Additional forms of wage theft include:

  • Failing to pay overtime;
  • Refusing to provide an employee’s final check after said employee leaves the job;
  • Paying for fewer hours than actually worked, or not at all;
  • Failing to pay minimum hourly wages or higher.

Employers Break Several Laws with Wage Theft Practices

Wage laws are outlined in a number of places, including:

  • The Fair Labor Standards Act (FLSA): Outlines federal minimum wage requirements and time-and-a-half pay for any hours over 40 in a week;
  • Bacon-Davis Act: Provides that workers who are employed by federal contractors are entitled to the prevailing wage in the vicinity in which their work occurs;
  • Tax Laws: Guidelines outline when employers may classify workers as independent contractors (saving employers money) and when workers must be classified as employees.

Common Fields for Wage Theft

Although it can happen in any field, certain industries tend to exploit wage theft practices more often than others. In particular, wage theft is prominent in restaurant work, the agricultural field, janitorial work, retail employment, and home health care services.

California Tops States for Wage Theft

Surprisingly, of the nearly $9 billion wage theft claims in the country in the last couple of decades, more than 50% have come from right here in California. One report states that wage theft is actually “built into the business model” of many American corporations. In California, a good chunk of the infractions are related to strict state codes for the rest and meal breaks to which employees are entitled. Another common issue relates to whether employees should be paid for the time it takes to put on and remove protective equipment and clothing. Disturbingly, the lion’s share of these cases are not against small operations that may be struggling to survive. Most labor probes involve large, profitable businesses that know better but choose to cut corners when it comes to fair pay to their employees. [Read more…]

Racism Within a Police Department?

racism within police departmentRacism within a police department? You would expect the people in the business of law enforcement to actually know the law and follow it. But according to one officer of the San Jose Police Department, when it came to racist comments and discriminatory behavior, the department knew of harassment and did nothing to stop it.

Details of the Racism Claim

Officer Nabil Haidar escaped a civil war in Lebanon by coming to the United States in the late 80s. Roughly a decade later, he joined the SJPD. According to him, discriminatory nicknames have plagued him from the beginning, increasing in ruthlessness over time. The taunts included tags such as The Beirut Bomber, ISIS, and Taliban. Why did he not complain when things first started? He says he feared retaliation.  

Finally, in 2017, Haidar had enough when a sergeant “joked” in a meeting that Haidar had worked with ISIS for two years. Haidar quickly filed an administrative claim alleging harassment. After almost a year passed with no conclusion to the internal investigation, Haidar took things a step further and filed suit against the department. In addition to the initial discrimination and harassment, Haidar asserts that the department Chief has retaliated against him with an unfair reprimand for a collision in which Haidar was involved. According to Haidar, the chief left out pertinent information related to the crash, which would have exonerated him to an extent, in the reprimand.

In Haidar’s May 2018 claim, he says a transfer taken due to the problems has resulted in more than one million dollars in lost future wages over the coming years until he is eligible to retire.  He also is claiming $5 million for emotional distress.

Equal Employment Opportunity Commission Laws

Federal law prohibits discriminating against individuals due to race, culture, or ethnic background. This relates to any aspect of employment, including hiring, pay, benefits, training, promotions, job assignments, layoffs, and firing. Equally important, the law addresses harassment, stating that employees shall not be victimized with racial slurs or pejorative statements related to race or ethnicity. This applies to coworkers and supervisors alike. If such harassment exists and is the basis for creating a hostile work environment, it can result in legal consequences.

Racism – A Significant Problem

Although some might believe that racism is no longer a problem in America, the numbers tell a different story. Nationwide, nearly 35,000 suits filed with the EEOC were resolved in 2017 alone, at a cost of over $75 million.  Clearly, a substantial problem still permeates this country in all sorts of businesses. [Read more…]

Unjustly Terminated?

unjustly terminatedWhen Barnes & Noble fired chief executive officer Demos Parneros, he fought back with a lawsuit claiming he was unjustly terminated. That the bookstore made up reasons to get rid of him, and by firing him after just over a year of employment, they breached their contract with him and harmed his reputation. He went after the company in court, asking for over $4 million in severance pay and additional damages.

Unjustly Terminated? Barnes and Noble’s Side

Barnes and Noble, on the other hand, contends that Parneros was no unjustly terminated. They stand by their decision to fire the executive, and has filed a countersuit claiming they should be able to recoup the money already paid to him during his 14-month stint with the company due to his “disloyal conduct.” His lawsuit, they claim, is simply an attempt by Parneros to extort money from the country’s largest chain bookstore.

The termination, they say, was the result of serious allegations of sexual harassment. A female employee reported that Parneros engaged in unwanted comments and touching, telling her in one incident that she seemed the type of woman who would “put out” if she were “wined and dined.”

Parneros is also accused of bullying CFO Allen Lindstrom.

In addition to the sexual harassment and bullying claims, Parneros is impugned for trying to sabotage a major sales deal involving Barnes & Noble and an unknown entity.

Unjustly Terminated? The Denial

Parneros denies the claims, and contends that he never sexually harassed female employees; nor did he bully subordinates, or in any way behave in a way that could be interpreted as disloyal to the company. In terms of his treatment of Lindstrom, Parneros attests that the treatment was appropriate in light of Lindstrom’s subpar work performance.

The idea that Parneros attempted to interfere with any sales deals is totally false, according to him. The sales deal fell apart, and the company founder, Leonard Riggo, blamed Parneros unjustly. According to Parneros, he was unjustly terminated soon afterward, and his severance package was withheld.  Beyond that, Barnes & Noble put out a press statement that made Parneros seem to be leaving due to gross sexual misconduct, something he says the company knew was patently false. His lawsuit claims breach of contract and defamation.

What Now?

With both cases pending, the outcomes remain to be seen. Barnes & Noble is reconfiguring its management team, and both sides seem to be preparing for a fight to the end. [Read more…]

Boeing Pays for Hostile Work Environment

hostile work environmentSix hostile work environment lawsuits at Boeing. Boeing considers itself to be a stellar employer, one that aspires to build values of respect and that is intolerant of harassment. A jury, however, found that the company fell short of that aspiration, and demonstrated just how serious the shortcomings were with a verdict awarding hundreds of thousands of dollars to a disparaged employee.

Details of the Boeing Hostile Work Environment Case

Roderick Marshall was a veteran employee at Boeing, having put in 18 years with the company. He tolerated jokes that were seething with racism without reporting them to supervisors. While management does not dispute this, they did not deal with the situation because, they say, Marshall failed to follow company protocol for reporting complaints.

Then one day, a white employee at Boeing twiddled with a string of rope, eyes on Marshall, Marshall could not have imagined what was to come next  The white man tossed the rope to Marshall, who caught it, only to see that it had been tied into a hangman’s noose. Offended, Marshall had had enough. A jury awarded Marshall $350,000 in damages. Their judgment listed several problems:

  • Boeing failed to prevent harassment;
  • Hiring practices were negligent;
  • Supervision of employees was lax;
  • Retention of problem employees was negligent.

This case highlights the responsibility of employers to police the work environment in order to ensure that employees are safe in all regards. Unfortunately for Boeing, their court days are not over. Five additional lawsuits are currently in the works, all related to discrimination and harassment.  

Defining a Hostile Work Environment

The U.S. Equal Employment Opportunity Commission (EEOC) cites particular requirements in defining a hostile work environment:

  • Demonstrations of discriminatory behavior directed toward a protected class (race, gender, age, sex, disability, or religion);
  • Repeated, not isolated events over time;
  • Actions severe enough that a reasonable person’s work would experience interference as a result of feelings of intimidation and/or abuse, or;
  • Actions that prevent an employee’s ability to advance;
  • A failure of management to respond to a known and/or reported situation, or;
  • An insufficient response to the problem.

Building a Healthy Workplace Environment

As an employee, there are a number of things you can do to help build an inclusive work environment. Some suggestions include:

  • Joining company activities and events designed to help employees network and grow relationships;
  • Participating in additional professional organizations;
  • Creating your own social groups with individuals from work, or who can help you with workplace issues.
Experiencing a Hostile Work Environment

In the event you are suffering from a hostile work environment, what should you do? Here are some tips:

  • Keep dated notes about specific issues;
  • File a complaint with human resources;
  • Consider getting counseling to deal with the emotional repercussions.

[Read more…]

California Breach of Employment Contract

california breach of employment contractContact a California breach of employment contract attorney if you feel the terms of your employment contract are not being honored. Contracts are entered into in the workplace every day. While many employees here in California are considered to be “at will” employees who can be terminated without cause, certain employees do have contracts that specify a particular time frame for work, and that may or may not have options for extensions. If you feel the terms of your contract are not being honored, you may wish to consult with an attorney experienced in such matters to determine how to proceed.

California Breach of Employment Contract Defined

What constitutes a California breach of employment contact? Several elements must exist:

  • You and one or more parties must have entered into a contract;
  • You substantially met the requirements set forth in the contract;
  • If you did not complete all the requirements, you were reasonably excused from them;
  • Your employer did not meet his or her requirements set forth in the contract, or;
  • Your employer acted in a way that was prohibited within the contract;
  • You experienced some harm;
  • The harm was essentially due to the breach of contract.

What is a Material Breach?

A material breach is one that is so significant that it results in substantial damage, or it validates your reason for failing to fulfill your contractual obligations. For instance, let us say you contracted with an employer to redesign a web page and develop advertising materials over the course of one year. You were expecting to be paid monthly, but after three months you had yet to see a paycheck, or worse, you were let go. You are clearly justified in discontinuing your work because the failure to pay you as agreed for the established time period was a material breach.

What is a Non-Material Breach?

On the other hand, a non-material breach of contract generally involves only minor damage that would not entitle the other party to forgo their responsibilities of the contract. For instance, let us say you had agreed to redesign the web page and develop advertising materials by January 1st.  Although you completed most of the job, the finished advertising materials were not available until January 4th. While you did fail to meet the terms of the contract, the damages to your employer are presumably minimal under the circumstances. Ergo, there is no justifiable reason for your wages to be withheld.

California Breach of Employment Contract – Damages

The types of damages recoverable include general damages and consequential damages.

  • General damages are those that come directly out of the breach, such as wages for the job that was done.
  • Consequential damages go beyond what might be expected due to the employment contract breach.  For example, if the breach led to additional unforeseeable costs, they would be consequential damages.

[Read more…]

Should You Sue Your Employer?

sue your employerShould you sue your employer? Plenty of people dislike their jobs. Sometimes it is because of the work itself, sometimes it is due to personnel issues, and sometimes it is because of a toxic work environment. When does simple disgruntlement become a legitimate reason to sue your employer? Every situation is different, and only an experienced employment attorney can answer that question for you.

Common Reasons to Sue Your Employer

Suing an employer is a pretty bold move, but all too often it is justified, and is the only way employees can be empowered to regain the dignity, wages, and satisfaction they deserve after mistreatment on the job.  Here are just a few of the most common reasons employees decide to fight back against unscrupulous employers:

  • Firing without giving a reason: Some employers think that just because California is an at-will state, they can terminate anyone without providing an explanation. What they do not realize is that if they fail to explain the motivation behind their decision, the employee may rightfully suspect the termination is based on discrimination, retaliation, or some other unsavory factor. This can land the employer in court pretty quickly.
  • Claiming poor performance when the evidence says otherwise: If an employee has a long track record of satisfactory job performance and things suddenly change due to new management or some other issue, defending the termination will be tricky against a skilled prosecution team.
  • The timing for termination stinks: When an employee files some sort of complaint with HR, Workers’ Compensation, or another work-related entity, and is suddenly on the firing line, it may not be too difficult to connect the dots.
  • Delaying the investigation for a complaint: If the employer drags out an investigation about harassment or some other issue, it can become ammunition in a lawsuit;
  • Ignoring company policies: When policies are on the books, employees can expect their bosses to follow them. If that does not happen, the end result may be a lawsuit.
  • Discrimination: State and federal laws offer protections for employees based on a number of circumstances, including race, age, gender, disability, sexual orientation, pregnancy, and religion. When employers discriminate in the hiring, training, pay, promotion, or termination of individuals based on a protected status, it is simply a lawsuit waiting to happen.
  • Failing to accommodate: In addition to discrimination based on protected status, failing to provide reasonable accommodations is unlawful. Whether in regards to requirements related to attire, schedules, physical surrounding, job requirements, or other simple adjustments, employers must comply with EEOC rules.

[Read more…]

Disclaimer

The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.